The Protection Gap: Non-Refoulement in the Climate Era

Abstract

The cross-border displacement caused by environmental disaster and slow-onset sea-level rise constitutes one of the biggest challenges in legal and human rights terms that the world faces in the twenty-first century[1]. Even as the frequency of climate-induced migration increases, individuals fleeing environmental devastation find themselves caught in a legal limbo. The main international treaty concerning the issue of forced migration, the 1951 Convention Relating to the Status of Refugees, operates on a fault-based system where an individual needs to be persecuted individually by a state or non-state entity based on the specified grounds of protection.

 In this article, it will be argued that the attempt to change the Convention is legally and politically unrealistic. It will be argued that international law should use a rights-based approach specifically the principle of non-refoulement established in Article 6 (Right to Life) and Article 7 (Prohibition of Inhuman or Degrading Treatment) of the International Covenant on Civil and Political Rights (ICCPR)[2]. This article will provide a jurisprudential analysis of cases of international human rights bodies, especially of Teitiota v. New Zealand and Daniel Billy v. Australia, to demonstrate how human rights can fill the protection gap for climate-displaced population.

I. Introduction: The Transnational Climate Displacement Crisis and the Legal Vacuum

Climate change on a global level is no longer an issue of purely environmental nature; instead, it has become a structural problem which jeopardizes human habitability, territorial integrity, and human rights enjoyment. Island states are threatened with becoming uninhabitable due to rising levels of the ocean, low-lying coastal areas and arid zones suffer from desertification, soil salinization and severe weather conditions. Such environmental challenges automatically lead to human displacement. Although not all climate-forced migration is necessarily international, a growing number of people are compelled to leave their home countries searching for safety and habitable place to stay[3].

Although climate migration across national boundaries has already taken place, the current public international law does not provide any legally binding multilateral mechanism addressing the legal situation and rights of displaced people. The term ‘climate refugees’ is used widely in popular discourse and media, although it is not the most accurate one from a doctrinal perspective. According to the positive international law, there is no right to entry or asylum of climate forced displaced persons in the territory of receiving states[4].

In the absence of any legal protection, such people face serious problems. Climate-displaced people are regularly treated as illegal economic migrants and as a result, subjected to border pushbacks, mandatory detention and even forced deportations (refoulement)[5]. When such people are forcibly repatriated to origin countries which lost their infrastructure, fresh water resources, ability to support agriculture and therefore habitability, they are exposed to serious human rights violations.

This paper aims to analyze how international public law addresses such legal lacuna. Although it is impossible to expand 1951 Refugee Convention to climate displacement, the principle of non-refoulement, protected by human rights treaties, can serve as an immediate solution. Through the analysis of the state obligation to respect the right to life according to the ICCPR, this paper will claim that returning a person to the territory which was made uninhabitable by climate change amounts to a violation of positive obligations of the receiving state.

II. The Structural Deficiencies of the 1951 Refugee Convention

 The cornerstone of the structure of international refugee protection is the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. As per Article 1A(2), a refugee is any person who:

“…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country…” [6]

This framework, although successful in addressing the mid-twentieth century European displacement of persons on political grounds, does not provide the means for persons who are fleeing from environmental destruction.

A. The Need for “Persecution” and No Persecutor Needed

For one to be recognized as a refugee under Article 1A(2), an individual needs to prove that he/she has a well-grounded fear of “persecution.”[7] According to international law, persecution involves a gross violation of basic human rights which is committed either by governmental actors or non-governmental actors that are out of control of the government. The environmental degradation, increased sea level rise, and natural calamities are unable to meet this criterion. This is because climate change is a systemic issue that emerges out of the emissions of greenhouse gases across the world. There is no one identifiable individual who can be said to be the persecutor and the victim of such persecution as well[8]. Nature cannot act as the persecutor according to the international law system.

B. The Failure of the “Nexus Test”

Even if the environment degradation were treated as a form of constructive persecution, then it should still be shown by an applicant that the threat falls within the strict “nexus test”, where the persecution is done on account of one of the five enumerated protected grounds, namely race, religion, nationality, membership in a particular social group, or political opinion[9].

The effects of climate change impact people irrespective of their political or social affiliation depending on how exposed they are geographically. While disadvantaged populations such as poor and indigenous groups may be more susceptible to climate effects due to past economic or social disadvantages, there have been consistent rejections of attempts to categorize those people as a “particular social group” in light of Article 1A(2).

C. The Requirement of Being Outside the Country of Origin

A large amount of movement due to climate factors takes place within states before any move into another country is made. In the 1951 regime, internal displacement does not raise any international duty to protect refugees. Instruments such as the UN Guiding Principles on Internal Displacement provide for issues of internal displacement, but they are soft law instruments, which do not bind third countries to grant asylum.

Efforts to amend the 1951 Convention in order to include “climate refugees” have been met with strong opposition. Receiving countries are afraid to be forced to increase treaty obligations in times of political sensitiveness with regard to border control. Renegotiation of the Convention would weaken existing refugee protections instead of increasing them. As a result, climate displacement should be approached outside the refugee law doctrine.

III. The Human Rights Alternative & The Teitiota Precedent

While the traditional framework of refugee law is too narrow due to its strict fault-based definitions, the paradigm of human rights is broader and more inclusive. The prohibition of refoulement, first formulated in Article 33 of the 1951 Convention[10], has been extended in human rights treaties and now prohibits any state from removing a person to a place where there is a real threat of gross human rights violations.

A. Article 6 and Article 7 of the ICCPR as Legal Instruments:

In the context of the International Covenant on Civil and Political Rights (ICCPR), the obligation of non-refoulement is implied in:

• Article 6(1): the right to life, which should be guaranteed and protected by law.
• Article 7: the prohibition of torture or inhumane, degrading treatment or punishment.

From the perspective of human rights case-law, the use of the doctrine of non-refoulement does not require proof of persecution and identification of the persecutor but rather focuses on an objective threat of harm. If the level of degradation of environment in a country of origin leads to the threat to people’s lives or if their living conditions turn out to be inhuman and degrading, then the deportation of a person from such environment would violate Articles 6 or 7 directly.

B. Human Rights Non-Refoulement

• Traditional Refugee Law: Requires “Persecution,” requires 1 of 5 protected grounds, focuses on state/actor intent.
• Human Rights Law (ICCPR): Requires “Real risk of harm,” applies indiscriminately, focuses on objective conditions.

IV. Landmark Case: Teitiota v. New Zealand (UN Human Rights Committee, 2020)

 Legal Doctrine of Climate Displacement: The relationship between climate displacement and ICCPR was codified in Ioane Teitiota v. New Zealand[11].

• Background Facts: Ioane Teitiota, a national of Kiribati, sought asylum in New Zealand as a refugee and as a protected person, citing rising sea levels, saltwater infiltration, overcrowded living conditions, and absence of drinking water in Kiribati as threats to his life and the lives of his family members. His application for refugee and protected person status was refused by the courts of New Zealand, leading him to file a communication with the UN Human Rights Committee (UNHRC).
• Ruling: The UNHRC decided to uphold the deportation of Teitiota from New Zealand, arguing that the condition in Kiribati was not sufficiently threatening to life as the nation-state was attempting to adapt to the environmental changes:
• Significant Legal Principle: Although the individual case was rejected, the UNHRC made an important legal principle:

1. Right to Dignified Life: The right to life under Article 6 of the ICCPR implies the freedom from living conditions that impair dignity[12].
2. Non-Refoulement as an Interstate Duty: Environmental pollution and climate change can constitute non-refoulement duties under Article 6 and 7 if the risk of harm is personal, real, and reasonably foreseeable[13].
3. Threshold of Imminence: States cannot deport individuals to the countries with environmental degradation due to climate change, which poses a real and imminent threat to the life of an individual.

The decision in Teitiota case shows that the climate displacement is considered an appropriate ground for triggering human rights-based non-refoulement, thus moving the global legal discussion from whether human rights law applies to the timing of environmental degradation.

A. Procedural Issues of Article 6 and the Burden of Proof:

One of the main issues in operationalizing human rights-based non-refoulement is the issue of the burden of proof. According to international jurisprudence (Vilvarajah v. United Kingdom;[14] UN Human Rights Committee communications), applicants should prove “substantial grounds for believing” that there is a risk of irreparable harm upon return to a country. 

B. Expanding State Responsibility: Daniel Billy et al. v. Australia (UNHRC, 2022)

In the case of Daniel Billy v. Australia, Torres Strait Islanders claimed that Australia’s inability to carry out climate adaptation measures is in violation of Articles 6 (Right to Life), 17 (Freedom from Interference in Privacy, Family, Home), and 27 (Right to Take Part in Cultural Life) of the ICCPR.

 Three important legal principles were created by the Committee:

• Positive Adaptation Obligation: The non-adoption by the state of timely adaptation to the environmental threat violates human rights.
• Violation of Family and Cultural Rights: Although no imminent life-threatening situation could be determined, Australia was found in breach of Articles 17 and 27, since environmental changes prevented people from traditional ways of life – fishing, agriculture, cultural survival.
• Non-refoulement Obligation: In the process of deportation, the severe destruction of family life or the destruction of cultural life (Articles 17 and 27) would exceed the severity requirements of Article 7 (inhuman treatment).

This raises serious structural issues:

1. Information Asymmetry: The applicants lack localized hydrological information and environmental forecasts to substantiate that their locality has become functionally uninhabitable.
2. Positive State Obligations under General Comment No. 36: Paragraphs 26 and 62 indicate that the right to life includes environmental degradation, thereby making state parties obligated to conduct risk assessments on climate change in the process of expulsion[15].
3. Reassigning the Burden of Proof: In cases where there is prima facie evidence of environmental breakdown, like the total absence of potable water or agricultural failure, Article 6 obliges immigration officers to carry out a separate and objective risk assessment. Rejection of the claims owing to lack of targeted persecution misinterprets human rights law, which analyzes objective territorial factors.

C. Operationalizing Extraterritorial Human Rights Obligations

The operation of turning the standard laid down in Teitiota case law into enforceable legal duties will require the clarification of the method of exercise of extraterritorial jurisdiction. Under international human rights law, a country generally asserts jurisdiction over people under its sovereign power over its own territory. In cases of non-refoulement, the jurisdiction arises at the time when a country compels the individual to return to a hazardous environment in which the deporting country will have control over him[16].

D. Due Diligence and the Standard of Differentiated Capacity

When a deporting state gains the capacity to exercise control over a displaced person because of climate change, then the obligations imposed on it under Article 6 of ICCPR arise. The standard of diligence that applies to such a scenario is that of international due diligence. For transboundary environmental harms, due diligence means that the receiving states conduct a careful and individual assessment of risks before ordering deportation[17].

The question of due diligence must address the capacity of the states to assess such risks. Wealthier countries will have the capability of satellite imaging, climate analysis, and diplomatic tools. The tribunals in such states will, therefore, not be ignorant of the fact of uninhabitability of a climate vulnerable origin state. Such a failure to do so is violation of procedural component of the right to life.

E. The “Imminence” Problem and Slow-Onset Degradation

Nonetheless, the legal challenge to the practical application of non-refoulement in cases of climate displacement stems from the need for imminence. Imminence in traditional human rights jurisprudence requires that the threat of danger be imminent, real and personal. If one refers to sudden natural disasters, such as violent storms and unexpected floods, it would be simple to demonstrate imminence. However, in cases of slow-onset processes like sea level rise, ocean acidification and desertification, the situation develops over decades[18].

Domestic courts often use slow-onset process as an excuse to deny claims by stating that individuals can adapt locally or that the threat is speculative in nature. The logic behind such a decision is not sound. According to UN Human Rights Committee in the case of Teitiota, it would amount to depriving the individual from the right of human protection if one waits until the entire state sinks beneath the sea.

Thus, international law needs to set its threshold not at the total disappearance but on a state of uninhabitability. The state is rendered uninhabitable long before it sinks below the surface because it means that:                  

F. Threshold of Functional Habitability

Phase	Condition	ICCPR Status
Phase 1	Initial environmental imapct	Adaptation possible; returns allowed
Phase 2	Failure of water and food resources	High risk; state must assess conditions
Threshold	Functional Uninhabitability	Non-refoulement triggered (Art. 6&7 ICCPR)
Phase 3	Total submersion or collapse	Absolute prohibition on return

 

G. Regional Frameworks as Normative Models

As global conventions formulate customary principles, regional laws provide wider protection paradigms relating environmental destruction with displacement:

• Article 1(2) of the 1969 OAU Refugee Convention (for Africa): Provides a category for persons “who flee because of events seriously disturbing public order”[19]. Serious disruption of the environment to a degree that renders local government unstable constitutes grounds for refugee status within this regional convention.
• 1984 Cartagena Declaration (for Latin America): Contains “conditions which seriously disrupt public order”, thus providing textual means of enabling the regional courts to protect environmentally displaced individuals under the same[20].

The above shows that international law need not destroy the existing system of legal protection in order to broaden the scope of protection provided by law. Incorporation of the above regional systems into domestic interpretation of ICCPR obligations constitutes a workable path forward for all states receiving refugees worldwide. In immigration processes within individual states, states use complementary protection to legally recognize individuals that do not qualify for protection according to the 1951 Refugee Convention. Convention who cannot be deported under human rights law. Incorporating environmental risk into complementary protection relies on three legal pillars:

1. Transboundary Environmental Harm: Under customary law (Trail Smelter; ICJ Pulp Mills), states must prevent cross-border environmental injury. Major emitting nations’ obligations intersect with human rights law, reinforcing prohibitions against returning displaced persons to devastated environments.
2. Humanitarian Visas vs. Legal Entitlement: Discretionary administrative stays (e.g., New Zealand’s Pacific Access Category) lack binding security. Codifying environmental degradation as an explicit ground for complementary protection creates an enforceable legal right.
3. Non-Derogable Non-Refoulement: Unlike Article 33(2) of the 1951 Convention, human rights-based non-refoulement under Articles 6 and 7 of the ICCPR is non-derogable, superseding domestic immigration controls[21].

V. Conclusion & Policy Recommendations

However, the reality of global environmental challenges shows another significant flaw in the framework of public international law. The 1951 Convention on the Status of Refugees, drafted as a response to persecution of states during the twentieth century, does not apply to environmental displacement. Forcing the phenomenon into already-existing categories of refugee rights devalues these categories and at the same time leaves displaced individuals without any specific legal remedy. The best way to deal with global environmental problems is the framework of international human rights law.

According to Articles 6 and 7 of the International Covenant on Civil and Political Rights, no state has the authority to deport any individual to a territory that became functionally uninhabitable due to environmental degradation. Such principle of non-refoulement has been firmly established in Teitiota v. New Zealand. In such a way, the problem is shifted from theoretical discussion into practice of international law.

For effective implementation of such human right, one needs the following reforms to be introduced into both domestic and international legal spheres:

1. To update the criteria of risk assessments for national immigration tribunals in relation to climate changes, environmental degradation, and infrastructure destruction to consider them legitimate factors in the non-refoulement review procedure;
2. To replace the criterion of the need for complete territorial submersion and the possibility of violent death for the fact of the impossibility to get access to drinking water, agricultural soil, and basic health services as a sufficient reason for imminent danger described in Article 6 of ICCPR;
3. To develop new regional mechanisms based on OAU Convention and Cartagena Declaration to formulate the concept of temporary protection status (TPS) and humanitarian visas for cross-border migration of environmentally displaced population.

VI. References

[1] Intergovernmental Panel on Climate Change (IPCC), Climate Change 2022: Impacts, Adaptation and Vulnerability (Contribution of Working Group II to the Sixth Assessment Report, CUP 2022)

[2] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR).

[3] Etienne Piguet, Antoine Pécoud and Paul de Guchteneire, Migration and Climate Change (Cambridge University Press 2011).

[4] Guy S Goodwin-Gill and Jane McAdam, The Refugee in International Law (4th edn, OUP 2021).

[5] Matthew Scott, Climate Change, Disasters and the Refugee Convention (Cambridge University Press 2019)

[6] 1951 Refugee Convention (n 3) art 1A(2)

[7] James C Hathaway and Michelle Foster, The Law of Refugee Status (2nd edn, Cambridge University Press 2014)

[8] Scott (n 15)

[9] 1951 Refugee Convention (n 3) art 1A(2).

[10] 1951 Refugee Convention (n 3) art 33(1)

[11] Teitiota (n 6)

[12] ibid para 9.4.

[13] ibid para 9.11.

[14] Vilvarajah and Others v United Kingdom (1991) 14 EHRR 248, para 108

[15] UNHRC, ‘General Comment No 36’ (n 17) para 62.

[16] UNHRC, ‘General Comment No 36’ (n 17) para 62.

[17] UNHRC, ‘General Comment No 36’ (n 17) para 62.

[18] McAdam (n 2)

[19] Organisation of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa (adopted 10 September 1969, entered into force 20 June 1974) 1001 UNTS 45, art 1(2)

[20] Cartagena Declaration on Refugees (adopted 22 November 1984) Annual Report of the Inter-American Commission on Human Rights, OEA/Ser.L/V/II.66/doc.10, rev.1, section III(3)

[21] 1951 Refugee Convention (n 3) art 33(2)